Secretary of State for Justice v Plaistow (Sexual orientation discrimination - victimisation - unfair dismissal - compensation) [2021] UKEAT 0016/20/0607

Appeal against the remedy judgment and a costs order made against the Respondent. The remedy appeal succeeded in part as did the costs appeal which was remitted to the ET.

The Claimant succeeded in his claims of direct sexual orientation discrimination, of harassment related to sexual orientation, of victimisation and of unfair dismissal. The ET went on to assess compensation on a career-loss basis, calculated using a base salary that adopted an average of the competing pay figures used by the parties, it awarded a 20% uplift for the Respondent's failure to comply with the Acas Code on Discipline and Grievance and discounted the award by 5% when assessing the likelihood of the Claimant choosing to leave his employment early or the possibility of his being able to return to some form of employment in the future. Separately, the ET ordered the Respondent to pay one-third of the Claimant's total costs, notwithstanding an earlier costs award in respect of the Respondent's unreasonable conduct which the ET had assessed as having given rise to four days of additional costs. The Respondent appealed against the remedy and costs decisions.

The EAT allowed the appeal relating to remedy in part and also allowed the costs appeal. On the basis of the Claimant's expert medical evidence, the ET had permissibly found that the Claimant's condition was likely to be life-long. However, on the 5% discount issue, the ET had erred in failing to take account of the more general uncertainties of life that might impact upon either the length of a person's working life or even just the length of their working day. On the 20% uplift, the ET had also erred because it had not demonstrated that it had considered the absolute value of the award it was thus making (Acetrip). In relation to the costs appeal, the reasoning of the ET suggested that it might have double counted the period of unreasonable conduct on the part of the Respondent.

Published: 20/07/2021 12:25

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